This is Harry Fine's personal blog containing his comments on current Ontario legal issues and the current state, complexities and absurdities of landlord and tenant law in Ontario. Harry is a paralegal with over 15 years practicing landlord and tenant, Small Claims and Human Rights law and is a former member of the Landlord and Tenant Board. The comments in this blog do not constitute legal advice.

Tuesday, June 1, 2010

Dumbed-Down Wish List for the MInister of Housing

I'm a member of various boards and organizations dealing with L&T law in Ontario, and from time to time I get to meet the Minister or Parliamentary Assistant to the Minister to help them understand stakeholder issues more clearly. Landlord and Tenant law is political, so the political masters need be careful to meet with all sides so that the appearance of fairness is maintained.

Now of course there is nothing at all fair about Landlord and Tenant law in Ontario from the perspective of the landlord, but the legislature is supreme and has the right to make un-fair laws. If real estate investors don't do their due diligence, and find out ahead of time that rental housing attracts the same regulatory scrutiny as nuclear power (or soon, off-shore drilling), that's really their own fault.

I read posts and blogs where landlords suggest that they can't wait for the provincial conservatives to come to power in November, as they think that will change things. I think not. There are more tenants than landlords, and while I'm hoping for change, I'm not anticipating changes even if Mr. Hudak and crew come to power.

So I've got a list I've made up of things I would bring to the Minister's attention if I were meeting with the Minister tomorrow. You may be surprised when you read it, as it doesn't deal with the things most people complain about; no damage deposits, no ability to restrict pets, the frustratingly slow eviction process, no return of default orders and eliminating s.82 that allows tenants to ambush landlords with their own claims without notice at a rent arrears hearing. These are not on my list, as it would be a waste of a list. I'm afraid that the best that landlords will do is to fix up some non-political, and non-controversial provisions that have a grossly unfair result, perhaps un-intended.

Here's my top-ten list. Feel free to post your own comments, and tell me what makes you think the government would consider them.

1. Clarify rules about entry into the rental unit, both regarding time of entry and duration. The Wrona v.TCHCdecision at Divisional Court on appeal was disturbing and inconsistent with the landlord’s obligation to repair, maintain and keep fit for habitation. It also ignores the reality that landlord's don't control the schedule of trades people. The Courts, the Board and the Ministry's Investigations and Enforcement Unit are inconsistent, using different interpretations of what constitutes lawful notice of entry.

2. Modify the Board's Rules of Practice so that email is an accepted method of service, at very minimum for notice of entry into the unit. How many tenants have email, versus fax which IS a permitted method of service of documents.

3. Amend section 136 as follows to eliminate the unexpected effect of Price and Turnbull’s Grove which was decided at the Court of appeal. This decision renders meaningless the one year limitation, amnesty or deeming provision that was added to the Tenant Protection Act and remained in the Residential Tenancies Act to provide certainty and finality with respect to the amount of the lawful rent, particularly for those buying a rental property.

Rent deemed lawful

136. (1) Notwithstanding section 116, the rent charged one or more years earlier shall be deemed to be lawful rent unless an application has been made within one year after the date that amount was first charged and the lawfulness of the rent charged is in issue in the application. 2006, c. 17, s. 136 (1).

Increase deemed lawful

(2) Notwithstanding section 116, an increase in rent shall be deemed to be lawful unless an application has been made within one year after the date the increase was first charged and the lawfulness of the rent increase is in issue in the application. 2006, c. 17, s. 136 (2).

4. Clarify that an N4 notice given for rent arrears (or a conduct notice such as an N5, N6 or N7) does not eliminate the tenant’s obligation to pay rent during a 60 day notice period or to the end of the lease term if the tenant moves out after receiving the notice. Say goodby to lease-breaking parties!

5. Clarify s. 74(14) of the Act so that the Board has a consistent approach as to whether on a void motion, the tenant must have paid all the rent owing to the date of the motion hearing, and not just the date on which the motion was filed, which could be a month or more earlier. It's absurd that a tenant can void an eviction order for rent arrears, and still owe a month's rent or more.

6. Revise the disclosure rules to mirror those in the Small Claims Courts. Respondents, landlords or tenants, should have a right to be aware of the case against them before they arrive at a hearing, particularly with the tenant’s right to raise s.82 issues at a rent hearing.

7. Fix the “one year limitation” problem on money unlawfully collected or retained. Currently a tenant can sue the landlord for years of un-paid LMR interest even though s. 135(4) seems to have been intended to limit it to one year:

Time limitation

(4) No order shall be made under this section with respect to an application filed more than one year after the person collected or retained money in contravention of this Act or the Tenant Protection Act, 1997. 2006, c. 17, s. 135 (4).

8. Look at the s.53 provisions regarding the tenant’s right to return to the unit in applications for renovation, when the revised configuration of the complex makes it impractical, for instance, a rooming house converted to a single family home;

9. Section 68 should be changed so a tenant cannot, at a hearing, claim he or she “didn’t” void the N5 notice even though the landlord considered it voided;Notice of termination, further contravention

68. (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) a notice of termination under section 62, 64 or 67 has become void as a result of in the landlord’s opinion, the tenant complying with the terms of the notice.

10. Broaden ss.62 and 89 (notice of termination and application for damages) so that landlords can go to the Board for damages arising out of a tenant’s conduct if the damages are losses incurred, and not just physical damage. It is crazy that if a landlord has to bring in a company to clean up mess because a tenant won’t clean up infestation, or tow a car, or pay the fire department because of a false alarm pull, that the current legislation doesn’t permit me to do it (although sometimes Board Members forget that). The Courts have said that tenants have a right to general and special damages, almost every sort of damage is available to them through the LTB, in contract, tort and statute, with no requirement to make a separate trip to Small Claims Court.